Formatted PDF: 1986 – Leon Letwin – Teaching First-Year Students – The Inevitability of a Political Agenda, 10 Nova Law Journal 645-46 – 2 -OCR
Teaching First-Year Students – The Inevitability of a Political Agenda
Leon Letwin
Leon Letwin has been a professor at UCLA School of Law since
1964, currently teaching Civil Procedure and Evidence and occasionally
engaging in civil liberties litigation. He is deeply concerned
about the under-representation of minorities in law school
student bodies and faculties.
As I’m sure is true of most instructors, I have many teaching aims
– some of which no doubt conflict and some of which I’m only dimly
aware. But one central objective is this: I would like students (especially
in their first year) to recognize that there is nothing necessarily
right or inevitable about the agenda of issues presented for their consideration;
and that the act of defining the issues (by myself, the
casebook author, or whomever) expresses political choices as much as,
or more than, the choice of solution to those issues.
I experience difficulty in achieving my goal because in large measure
I am fettered by the very traditions that I want challenged. I find
myself accepting, almost reflexively, the conventional definition of “the
issue” and reserving my critical talents, such as they are, for the debate
as to the best solution. On occasion – all too infrequently – I am able
to come up with a challenge to the conventional agenda of issues myself.
As a modest example, I offer the following: Erie v. Tompkins,’ it
will be recollected, is famous for its holding that federal judges in diversity
cases are bound by the common law as announced by state
judges. One can debate the pros and cons of this view, but the transcendent
importance of the issue is widely taken for granted. Charles
Wright writes, “It is impossible to overstate the importance of the Erie
decision . . . . [I]t returns to the states a power that had for nearly a
century been exercised by the federal government.” 2 And consideration
- 304 U.S. 64 (1938).
- C. WRIGHT, FEDERAL COURTS 255 (West 1976).
— 10 Nova L.J. 645 1985-1986
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Class bias of judges
of the Erie issue occupies many pages in most civil procedure
casebooks.
But a contrary and more useful perspective might be that the importance
of the decision is easily overstated; that Erie raises a fairly
trivial issue of power allocation; that the case has been exaggerated out
of all proportion to its significance; and that the truly vital allocations
of power run along altogether different lines than the division of power
between state and federal judges to fashion common law rules. For
judges, whether they be federal or state, are overwhelmingly white, upper
middle-class, male and drawn from a narrow stratum of society.
Now that is a phenomenon the importance of which it is impossible to
overstate. Indeed, the important fact about Erie is not the differences
between state and federal judges (so that which group gets to proclaim
the common law looms as a crucial issue) but the similarities between
the two, given the narrow social base from which they’re both drawn.
This doesn’t answer the question whether Erie is right or wrong, but it
does deflate the importance of the issue; and it puts in issue which issues
ought to be the subject of intense debate.
I would be pleased if I were able to identify and challenge more
frequently than I do the systematic assumptions which underlie the
teaching program.
[Vol. I0
— 10 Nova L.J. 646 1985-1986
Ruminations On Legal Education In The Next
Decade
Don Llewellyn and Richard Turkington
Don Llewellyn is a professor and director of the graduate Tax
Program at Villanova School of Law. As his article indicates, the
program depends upon the extensive and creative use of adjunct
instructors team-teaching with full-time professors. Don has also
taught at Nova, Rutgers, Temple, Syracuse, William and Mary
and Willamette.
Richard Turkington has been a professor at Villanova since 1977,
having taught previously at Duke, DePaul and Southwestern
Schools of Law. He teaches Constitutional Law, Conflicts of Law,
Privacy and Torts and is active in civil liberties and fair employment
matters. Dick suggests that the current focus on competency
skills will be at the expense of theoretical or perspective courses.
He advocates systematic integration of perspective materials in
courses that traditionally emphasise doctrinal coverage.
Introduction
At the 1985 American Bar Association convention in London, Professor
Aubrey Diamond of the University of London, noting the spate
of literature in the United States on the role of legal education in producing
competent lawyers, said that it seemed as if we “speak of little
else.”” Lawyers and law teachers do, of course, talk about a lot more
than lawyer competency and legal education in the well over two hundred
legal periodicals that are published each year in this country.2 Yet
- JUSTICE FOR A GENERATION (A.B.A. 1985); A. DIAMOND, LAWYER COMPETENCY
AND BAR ADMISSIONS: THE ROLE OF THE LAW SCHOOL AND THE ROLE OF THE
PROFESSION 156 (1985).
- Approximately 148 of the law schools that are accredited by the A.B.A. and/
or AALS publish a legal periodical. These accredited schools publish an additional 60
secondary law reviews, and 30 legal periodicals are published by non-accredited
schools, making a total of 238. This figure does not include publications in other disciplines,
such as philosophy and political science, that discuss law-related matters.
— 10 Nova L.J. 647 1985-1986
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if an observer from another legal system were left with the impression
that over the last decade legal education has myopically focused on the
competency of the practicing bar and the role of law schools in lawyer
competency, this would be quite understandable.
A primary focus in reforming legal education during the past few
years has been on expanding the course offerings in lawyering skills.
Many of these reforms can be traced to Chief Justice Burger’s public
and very appropriate criticism of the competency of lawyers generally,
especially with respect to trial advocacy skills.’
The Chief Justice’s complaints have engendered much comment,
producing an interesting and thoughtful dialogue. Although there have
been powerful detractors from his views, the competency-skills movement
has already had a significant effect on legal education.4 It has
- See Burger, The Special Skills of Advocacy: Are Specialized Training and
Certification of Advocates Essential To Our System of Justice?, 42 FORDHAM L. REv.
227 (1983). The Chief Justice’s article, delivered at the Fourth Annual John F. Sonnett
Memorial Lecture on Nov. 26, 1973 at Fordham Law School, is the public comment
that inaugurated the skills-competency movement. The Chief Justice places a
major portion of the responsibility for lack of adequate trial advocacy skills at the
doorstep of legal education. He supports utilizing the third year of law school for concrete
specialized training with practitioners and professional teachers. Nearly five years
later, the Chief Justice reiterated his views on the dismal state of lawyer competency in
a much publicized address at the Annual Meeting of the American Bar Association in
New York City, (Address by Chief Justice Burger, American Bar Association Annual
Meeting, New York City (Aug. 9, 1978). See generally, Cramton, Lawyer Competence
and the Law Schools, 4 U. ARK. LITTLE ROCK L.J. 1 (1981).
- Professor Allen has been an outspoken critic of the Chief Justice’s views, (Allen,
The Causes of Popular Dissatisfaction with Legal Education, 62 A.B.A. J. 447
(1976)). Professor Cramton has challenged the Chief Justice’s generalizations about
the extent of incompetency in the practicing bar and argued persuasively that lawyer
incompetency is not justifiability attributed to legal education. He has conceded that
the Chief Justice’s views have raised important issues; in fact, Cramton served as
Chairman of a task force on “Lawyer Competency: The Role of Law Schools,” established
by the American Bar Association on the very day that the Chief Justice leveled
his most severe criticism of lawyer competency. Some indication of those effects on
legal education is found in the substance of the Task Force Report. Several of the
recommendations of the Task Force that appeared in its published report in 1979 directly
related to emphasizing more lawyering skills experiences in law schools. The
most important of these are:
RECOMMENDATIONS ADDRESSED TO LAW SCHOOLS
- Educational Program
RECOMMENDATION 3
Law schools should provide instruction in those fundamental skills critical
to lawyer competence. In addition to being able to analyze legal problems
[Vol. 10
— 10 Nova L.J. 648 1985-1986
Llewellyn and Turkington
expanded clinical education offerings to include a variety of intern and
external programs which, in turn, have given stimulus to the adoption
of other types of lawyering skills offerings.
Furthermore, the competency-skills movement is affecting the mix
of legal doctrine, perspective, skills and practice courses that are offered
in many law schools in this country. The inclusion of more legal
writing in the first year, the addition of required and/or elective
courses in the second and third year that have written work product
components, and the addition of more drafting and litigation skill-type
courses – through simulation and in the clinic – will necessarily produce
changes in the legal doctrine and perspective course offerings.
The student/teacher ratio in the average law school is approximately
25-1. The addition of more teacher-intensive course offerings
will require severe restructuring of the curriculum generally and will
and do legal research, a competent lawyer must be able effectively to
write, communicate orally, gather facts, interview, counsel, and negotiate.
Certain more specialized skills are also important for many law graduates.
Law schools should provide every student at least one rigorous legal
writing experience in each year of law study. They should provide all students
instruction in such fundamental skills as: oral communication, interviewing,
counseling, and negotiation. Law schools should also offer instruction
in litigation skills to all students desiring it.
RECOMMENDATION 4
Law schools and law teachers should utilize small classes as opportunities
for individualized instruction in fundamental lawyer skills.
RECOMMENDATION 5
Since lawyers today commonly work in teams or in organizations, law
schools should encourage more cooperative law student work.
RECOMMENDATION 8
Law schools should experiment with schedules that provide opportunity for
periods of intensive instruction in fundamental lawyer skills.
RECOMMENDATION 9
Although the law faculty must retain responsibility for course content and
quality control, law schools should make more extensive instructional use
of experienced and able lawyers and judges, especially in structured roles
in which they utilize their professional knowledge and skill.
The Task Force then issued this caveat:
These recommendations should not be read as a call to turn law schools
into trade schools. We strongly believe that the areas of program improvement
recommended in this report offer as much challenge for intellectual
and academic inquiry as those traditionally emphasized in law schools; and
their development is important not only to the practitioner but to those
who utilize legal education in various other professional roles, including
teaching, business, and government.
1986]
— 10 Nova L.J. 649 1985-1986
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add further cost to legal education at a time when legal education is
laboring under financial constraints from several directions. Entering
professors are pressing for higher salaries. Many law schools are going
through the initial capitalization investment for computerizing aspects
of law school administration, the law library and student services. Although
tuition has continually increased over the last decade to meet
these costs, government subsidies for student tuition loans have now
decreased and, in turn, have affected enrollments.
Broad economic factors that affect the legal profession directly
also have indirectly further taxed legal education. The profession is absorbing
increasing numbers of law graduates but at a slower pace. The
number of lawyers in the United States has risen from 330,000 in 1970
to 622,000 in 1983; the projected figure for 1987 is 750,000. There is
now one lawyer for three hundred and seventy-five persons in the
United States, compared to one for six hundred thirty-two in 1970.1
As a result of this phenomenal expansion of the bar, there are now
both real and imagined concerns among students and legal educators
about placement. One reflection of this concern is that in 1984 enrollment
in law schools decreased in all general areas except for female6
and minority students. Financial and placement pressures have pushed
more of our full-time students into substantial part-time law jobs while
they are attending law school. More law school resources are now utilized
for placement and admissions than before.
These phenomena will likely increase in the next decade. Although
the proponents of more teacher intensive and clinical kinds of experiences
have recognized the need for additional resources to finance
these proposals,7 the overwhelming number of law schools that implement
these reforms will have to do so within their own existing re-
- See, THE LAWYER’S ALMANAC 1985: A CORNUCOPIA OF INFORMATION ABOUT
LAW, LAWYERS AND THE PROFESSION (1985).
- Data available from the A.B.A. indicates that student enrollment in A.B.A.
accredited schools is down in the following areas: Total Enrollment, 125,698, down
from 127,195 (1.18%); Men, 77,200, down from 79,215; Men receiving J.D.’s, 72,950,
down from 74,840 (2.5%); Average law school enrollment, 72,240, down from 73,523;
First-year enrollment, 40,747, down from 41,159 (1.00%); J.D. enrollment 119,847,
down from 121,201; Full-time enrollment, 100,931, down from 102,188; Part-time enrollment,
24,767, down from 25,007 (4%); Total “other” enrollment, 973, down from
1139.
- See, H. PACKER & T. EHRLICH, NEW DIRECTIONS IN LEGAL EDUCATION 76
(1972), and, REPORT AND RECOMMENDATIONS OF THE TASK FORCE ON LAWYER COMPETENCY:
A.B.A. REPORT 22 (1979).
650 [Vol. 10
— 10 Nova L.J. 650 1985-1986
Llewellyn and Turkington
sources. It is within this financial context that curriculum reform must
be examined, at least for most law schools.
Legal Education, the Recent Past: Theoretical Perspectives
and Legal Service
When we entered law teaching in 1967 and 1969 respectively, the
world, America and legal education were different from today. The focus
of legal educators was on a different set of priorities and concerns.
As we recall those expressions of concerns about deficiencies in legal
education and those speculations about the future directions of legal
education, they seem but whispers from a distant past when viewed
from the perspective of legal education in the mid 1980’s.
During the late 60’s and early 70’s, legal education was going
through a bullish stage. Student enrollment, which began to dramatically
increase in law schools in the middle 60’s, continued to expand
until 1981; enrollment rose from 64,406 in 1967 to 127,312 in 1983.
During this period, there also occurred the enrollment of women in unprecedented
numbers. As we teach today in schools where nearly 50
per cent of the students are women, it is almost impossible to imagine
that in 1967, just 18 years ago, less than five per cent of the law students
in the country were women. There were 47,980 female law students
attending law school in 1983, compared to 2,906 in 1967.8 Minority
student enrollment increased dramatically, as well.9 Also during
the late 60’s to the middle 70’s the number of law teachers grew with
the expanding law student population. Many law teachers were hired
straight out of graduate school, without a great deal or, in some instances,
any significant experience in practice.
During this period of expansion, the movement to have a significant
legal service component in law schools was building momentum.
Legal service clinics in law schools were established not only to provide
students with experience in practical skills, but also to effect social
change by providing heretofore unavailable services for the poor, both
in criminal and civil matters. 10
- THE LAWYERS ALMANAC, supra note 5.
- After an initial period of somewhat significant increases in minority student
enrollment, there has been a leveling off and there is some question as to whether there
will be future improvement in this area.
- See, generally, Grossman, Clinical Legal Education” History and Diagnosis,
26 J. LEGAL EDUC. 162 (1974). The leading impetus for clinical education with direct
1986]
— 10 Nova L.J. 651 1985-1986
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The period of the late 60’s to the mid 70’s (when we first began to
teach) was marked by the infusion of social service-oriented clinical
education, as well as theoretical and legal process perspective courses.”1
What a difference fifteen years make! Today, speculation about the future
direction of legal education has an entirely different focus. Inhouse
legal clinics are shrinking or about to become a dinosaur of the
past, to be replaced by the more economically efficient, simulated
course model and by external programs. Moreover, the simulated
course phenomenon is promoted exclusively for the purpose of exposing
the student to practical skill experiences and, at most, only lip service is
given to the role of law schools in providing services for the poor or in
promoting social change through reform litigation. The demise of inhouse
clinics also reflects legal education’s realistic assessment of the
limited and shrinking job market for legal service lawyers. Although
the reform movement in the late 60’s and early 70’s introduced some
theoretical and perspective courses which have gained a firm hold in
most law schools’ curricula, the emphasis now is clearly away from theclient-
student interaction during this period was the Ford Foundation which, through
the Council on Education in Professional Responsibility (C.O.E.P.R.) funded the establishment
of law clinics in a number of law schools. Law students were viewed as a
source of inspired and cheap labor for providing services to the poor. See Monagham,
Gideon’s Army: Student Soldiers, 45 B.V.L. REc. 445 (1965); Brown, The Trumpet
Sounds: Gideon – A First Call to the Law Schools, 43 TEXAS L. REv. 312 (1965).
Grossman includes much early criticism of the service clinic programs; see, e.g.,
Gorman, Proposals for Reform of Legal Education, 119 U. PA. L. REv. 845 (1971).
- See, Brown, Recent Trends in United States Legal Education, 26 J. LEGAL
EDUC. 283 (1973); H. PACKER & T. EHRLICH, NEw DIRECTIONS IN LEGAL EDUCATION
56 (1972) (observing that legal education was increasingly regarded as an advanced
general education). Some indication of the extent to which legal educators were
thinking about infusion of perspective dimensions into the students’ law school experience
may be surmised by the extent to which the Journal of Legal Education in 1973-
74 published articles on (1) Economic Analysis and its Role in Legal Education, (2)
Pharmacy and Law (3) Law and Social Work, (4) Law and Behavioral Sources Revisited,
(5) Law School as a Base for Interdisciplinary Studies in a University, (6) Family
Counselors of Law and Medical Students (7) Methodology for a Course on “Science,”
Technology and Law; (8) Military Law (9) The Relationship between Philosophy and
Law (10) Science, Technology, Law (12) Simulated Game Playing in Law School (13)
Simulation and Role Playing in Administrative Law (14) Thomas More and Legal
Education (15) Teaching of English Legal History in America (16) Transaction Emphasis
in Legal Education. See, the 1973-74 issues of the Journal of Legal Education.
See also, the overall discussion in Symposium, Legal Education, 53 N.Y.U. L. Rev.
293 (1978).
[Vol. 10
— 10 Nova L.J. 652 1985-1986
Llewellyn and Turkington
oretical and prospective offerings.12
The Present Challenge – Competency
At the American Bar Association meeting this summer, when Professor
Diamond made the statement that introduced this article, Professor
Cramton, then president of the AALS and a frequent and leading
commentator on issues in legal education, poignantly raised some
questions concerning the role of legal education in developing lawyer
competency. He pointed out that developing technical skills is not
enough: attention must be directed to psychological factors and attitudes
which play a vital role in the competent performance of lawyers.
As Professor Cramton correctly observes, the difference between having
the technical skills and performing as a competent lawyer is a product
of personality traits such as diligence, integrity, self-image and the collective
perceptions and attitudes that the individual attorney has concerning
law and the role of lawyers in society.
Professor Cramton then issued the following challenge to legal
educators:
[H]ow can we give. . . [law students] a positive image of themselves
as professionals, as craftsmen who take pride in their work,
as lawyers who always give good measure because that is the only
way they can look themselves in the mirror when they get up in the
morning?13
He suggested that the best way to achieve competence in the bar is
to make lawyers “care about the wellbeing of their clients and to care
about their image as professionals.”
In this part of this article, we would like to respond to Professor
Cramton’s challenging question. First, we will discuss a team-teaching
concept originally suggested in the Carrington Report in 1971 and
presently in practice in the Graduate Tax Program at Villanova. This
- A recent survey of law school curricula indicates that 23 of the 146 schools
that were surveyed required students to take an Enrichment/Perspective/Horizon/Humanistic/
Jurisprudence/Philosophy course after the first year. Twenty-eight schools required
a Clinical/Skills/Practice/Advocacy type course; one hundred and seventeen
required Professional Responsibility. See, VERKUIL AND KRINSKY, A SURVEY OF REQUIRED
AND ELECTED COURSES IN AMERICAN LAW SCHOOLS, presented at Deans’
Workshop, A.B.A. Midwinter Meeting, 1984, on file with authors.
- R. CRAMTON, JUSTICE FOR A GENERATION (1985).
1986]
— 10 Nova L.J. 653 1985-1986
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team-teaching model is both cost effective and pedagogically sound.
More importantly, it responds, at least in part, to the challenge of Professor
Cramton by simply “showing the students how,” exposing the
students (“up-close and personal”) to professionals who have a good
image of themselves and care about clients. Give the students that exposure
in a simulated clinical setting and, over the course of the term,
those professionals will demonstrate their positive qualities, and those
same qualities will be inculcated into the students. Second, we will discuss
the adjustments that may have to be made with respect to doctrine
and perspective courses in order to accommodate the increasing demands
that the skill courses make on law school resources.
The Role of the Practitioner – Team Teaching
The 1971 Carrington Report on the Curriculum Study Project
Committee recommends team teaching. For example, Legal Planning,
a course which is a part of the standard curriculum recommended by
the Committee, is described in the report as a course which should be
taught by a team including at least one practitioner engaged in legal
planning.14 Although some law schools may have instituted the kind of
team teaching suggested in that report, it certainly has not been widely
adopted.
Virtually every law school in the country uses practitioners as adjunct
faculty members, but any suggestion that they should have a permanent
and expanding role in the law school must be evaluated carefully.
There are obvious deficiencies inherent in the use of practitioners
as part-time teachers. They provide little opportunity for student access,
and a demanding practice provides serious competition for their
time and energy. Furthermore, it is difficult for them to develop pedagogical
skills comparable to a full-time faculty member. On the other
hand, the use of practitioners as adjunct instructors is economical. If a
law school is in close proximity to a sizeable bar with a diversity of
specialists, there is always a pool of very competent practitioners who
are willing to serve as adjunct faculty members for a modest stipend.
The obvious challenge is to tap this resource without compromising academic
quality.
A system referred to as “modified team teaching” is in operation
in the Graduate Tax Program at Villanova. Under this system, practi-
- PACKER & EHRLICH, supra note 7. No law school has instituted the curriculum
recommended by the report or any curriculum which resembles it.
[Vol. 10
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tioners having special skills are recruited to teach advanced courses,
including clinical simulation courses, together with a full-time faculty
member. The full-time faculty member’s role is to serve as the educator
who develops the overall structure for the course, tends to the mundane
tasks of preparing a syllabus and assignments, provides access for students,
and conducts examinations. The adjunct faculty member takes
major responsibility for the classroom presentations, thereby freeing the
full-time faculty member to play his role in other courses or other sections
of the same course.
This model is ideal for professional training and resembles the
models which are used in dental and medical schools. The student in
this type of course is put directly in touch with the “real world” and
can be exposed to the kinds of transactions that the practicing lawyer
most frequently encounters and to the issues that emanate from these
transactions. The Carrington Report refers to this as an effort to make
students keenly aware of the interaction between legal principles and
the environment in which they operate. Furthermore, the presence of a
real practitioner enhances the students’ experience and provides a more
vivid model to emulate. At the same time, the full-time faculty member
can insure that a basic foundation of legal principles will be properly
developed throughout the course. One might refer to this function as
developing the doctrine.
Team teaching
This kind of interaction between law teacher and practitioner is
contemplated but not often realized in the typical external clinic. A
1986]
— 10 Nova L.J. 655 1985-1986
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number of impediments inherent in the external clinic to achieving a
close and meaningful contact between the practitioner and the full-time
teacher are not present in the simulation exercises. In virtually all external
clinics those impediments include: 1) heavy caseloads, which are
frequently managed by an inexperienced practitioner (or at least not
the kind of distinguished practitioner who would be invited to participate
under the proposed model), and 2) a changing docket of actual
client matters, which prevents prediction of the kind of issues that will
arise and, thus, inhibits proper structure of the classroom component.
The full-time teacher and the practitioner should also experience
professional growth from the kind of exchange contemplated in the
modified team-teaching model. Those who have participated in team
teaching in the Villanova Graduate Tax Program report that they have
benefited from the experience. It gives the full-time teacher a real
world context in which to place his knowledge of ihe legal doctrine, and
the practitioner is required to go through the typical law school class
drill, which frequently results in a useful reexamination of even the
most fundamental assumptions and beliefs.
Professor Cramton would likely raise at least one concern regarding
modified team teaching as a method of raising the level of the students’
concern about their own image and the well-being of clients: He
is very wary of the legal profession’s dominant model for ethical behavior
which he described as the “total commitment” model. Under this,
the lawyer must do everything for the client (short of violating the law)
that the client would do for himself if he had legal knowledge and skill.
Our adversarial system will produce just results in the long run only if
there is total commitment on behalf of each party. Professor Cramton
is concerned that on some occasions this kind of zeal may have a negative
effect on the pursuit of justice and the well-being of the general
public. As he correctly observes, the total commitment model only
serves justice when both parties, and the public as well, are protected
by aggressive and competent counsel.
The practitioner’s degree of commitment has not been a problem
in our experience at Villanova. It is true that in the simulated cases
that are used in the Graduate Tax exercises, the opposing party in virtually
all cases, the IRS, is well-represented. More important, however,
the practitioners selected for this role have the emotional and psychological
traits which the Carrington Report regards as vital in the attainment
of competence. That report states:
As an advocate, he [the effective lawyer] should be aggressive. But
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— 10 Nova L.J. 656 1985-1986
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his aggression should be controlled. This is especially important in
negotiation or planning for the avoidance of disputes. It is important
to possess a sensitivity to the consequences of stress, not only
on others with whom the professional may deal, but also on himself.
It is useful to understand the psychodynamics of power, especially
as they operate on one’s self; thus it is important to recognize
the responsibility of power over others, without being infatuated by
- The model [lawyer] . . . should also feature the craftsman’s
sense of autonomy, which enables him to withstand criticism, to
express unwelcome opinions, and to cope with confficting claims to
his loyalty. He should possess a larger-than-ordinary time perspective
which enables him to sacrifice present benefits for larger future
ones. He should share an interest in the general welfare; the cynical
lawyer is an ugly menace, not only to others, but ultimately to
himself. At the same time, he should not be so committed to his
personal view of what constitutes the general welfare that he is unable
to reckon with the differing views of others.”‘
Although there may be instances where a practitioner endowed
with the character traits enumerated above, acting under the constraints
of the total commitment requirements, would have a significant
negative impact on the pursuit of justice or the well-being of the general
public, those situations are relatively rare. If such a situation were
to arise in the classroom setting, it should invite a thorough discussion
of the dilemma the practicing lawyer faces. The students in a teamtaught
course will identify with the practitioner and, thus, be more
acutely sensitive about the issue than is usually the case in classroom
discussions of ethical dilemmas.
In most instances, especially in those areas which are highly regulated
by complex statutory material, total commitment is the appropriate
standard.
For example, assume a tax lawyer shares the present view of the
Treasury that the tax incentives presently available under the Internal
Revenue Code to certain corporations who establish a presence in
United States possessions, such as Puerto Rico or Guam, should be restructured
so that the incentives would be available only for those corporations
which substantially increase employment in the region. Nevertheless,
if that lawyer represents a client such as a drug company
(The Treasury target) which operates totally automated facilities
which can easily be established in any geographic area, the lawyer
- Id. at 104.
1986]
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must inform the client of the present tax incentives and do everything
possible to help the client attain them. Similarly, the tax lawyer should
inform the client of the policy concerns that are presently manifested
and point out that those concerns may lead to reform of the law. He
should also be secure enough to tell the client that seeking such tax
advantages may create public relations problems. That same lawyer
should also have the autonomy and courage to engage in law reform
activities and to publicly endorse proposals for equitable taxation, even
though it may be opposed by his clients.
Lawyers who can demonstrate that kind of emotional balance
should be recruited for a team-teaching role. That kind of lawyer will
enhance competency training, and the total commitment which that
lawyer has to his clients will not interfere with his contribution.
Furthermore, exposure to such competent and ethical lawyers is
particularly important for today’s law student. Every legal educator is
aware that shrinkage in financial assistance has caused law students to
seek part-time employment. In many instances, that employment is as
a law clerk at a firm where the law school has no input. The experience
may or may not have a positive effect in the formation of the student’s
character traits. Modified team teaching, on the other hand, gives the
law school the opportunity to present an approved role-model to the
student. In that way, any negative influence that an outside experience
may have had on the working student can be neutralized. It is our view
that the time has arrived for full-time teachers to work in tandem with
a select group of practitioners, and that the division of labor should
follow the modified team teaching model discussed above.
The Challenge of Teaching Perspective (or Theoretical)
Courses in the 1980’s and 1990’s
Earlier in this article, we speculated that the current focus on
competency skills would affect the mix of doctrinal, skills, and perspective
courses in the curriculum. The heaviest cost to this mix will fall,
we believe, on theoretical or perspective courses, which will be reduced
because of increasing pressure in law schools to enhance the student
exposure to skills courses. The shifting of law faculty to skill courses,
and the public posture of legal education and the Bar on the need for
more practical training, will reinforce the less-than-enthusiastic attitudes
that many students bring into law school about theory and may
result in less enrollment in elective courses with a dominant perspective
focus, and in the elimination of certain courses altogether.
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We believe that the study and learning of doctrinal material is
important. Students need to know and be able to employ in concrete
factual situations, the basic rules, principles and concepts of several areas
of law. Doctrinal studies also are, we believe, still a very effective
way to develop basic analytical and case analysis skills.16 Although students
need to develop writing and other skills directly related to the
everyday responsibility of the practitioner, such as client interviewing
and counseling, negotiation, drafting, and advocacy, skills, they must
also be exposed to more general perspectives on law and the legal system,
and to basic understandings about nonlegal disciplines that have
special significance to legal policy. These disciplines would at least include
economics, psychology, history, sociology, and philosophy.
For purposes of this discussion, we will use “perspective” material
or courses, in a very general sense, to include both interdisciplinary
courses, such as law and psychology, and classic theoretical subjects,
such as jurisprudence and legal process, as well as other understandings
about law, such as modes or views on the interpretation of statutes.
- A report by a committee of the Harvard Law School faculty aptly summarizes
skills that doctrinal studies effectively develop. They are:
- Legal Reasoning and Argument
- Analysis
- A) “common law” case analysis – parsing of judicial decision (procedural
posture, holding/dictum, etc.), analogy and distinction, doctrinal
development.
- B) language analysis – use and interpretation of words and phrases in
rule statements; getting meaning from (or conveying it through) context,
history, purpose, “structure,” etc.
- C) problem analysis – conceptualization, categorization, characterization,
means-ends analysis, goal-setting, priorities feasibility, strategy.
III.Argument, Inference, Proof
- A) Fact determination – what counts as “fact” in adjudicative, legislative,
advisory, etc. settings; how facts are established (stipulation, judicial
notice, inference from evidence, client’s word, legislative investigation, presumption,
etc.); reliability – needs for and cost of; introduction to pertinent
psychology and epistemology.
- B) Composition of legal argument – how conclusions are drawn out of
positive law, precedent, various policy factors, “equities,” style and substance;
psychological considerations.
Tentative final draft, Chapter I, THE PRESENT STATE AND FUTURE DIRECT USE OF
LEGAL EDUCATION AT HARVARD: GENERAL CONSIDERATIONS, 9 (1982) in possession
of authors.
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The Importance of Perspective (or Theoretical) Studies to the
Legal Profession
Lawyers are members of what is predominantly a public profession.
The professional lives of most lawyers consist of primarily policymaking
or consulting functions. At most, twenty percent of lawyers
are actively involved in litigation or appellate advocacy. Lawyers predominant
in elective offices at the federal level and are now becoming
increasingly involved at the state and local level. For the lawyer who is
or will be a policymaker in government, theoretical understandings are
essential to the making of sound policy. The general structure and overview
which perspective materials provide facilitate clear judgments and
careful choosing between competing policies and principles. For example,
a legislator or legal assistant who is contemplating legislation
prohibiting conduct that his or her constituency considers immoral
would benefit greatly from exposure in law school to the writings of
contemporary moral philosophers 17 and to a thorough discussion of the
concept of “victimless crimes.”
Professor Feinberg, for example, has developed a way of looking at
the issues and arguments that are brought to bear when the government
enacts legislation that is designed to enforce the legislators’ sense
of moral offense in their communities. He breaks down the whole range
of justification for such legislation, from enforcing morals to preventing
physical harm and paternalism. He also discusses in a clear and cogent
way the issues involved in weighing the conflicting principles on tough
moral and social questions. 18 The general structures in Feinberg’s article
provide a way of looking at and organizing in one’s mind the range
of considerations that ought to go into making sound policy.
The policymaker must also have an understanding of the issues
that are presented when a law defines something as criminal, i.e., prostitution
or gambling, even though there is no victim in the classic sense.
In considering the soundness of legislating against this kind of conduct,
the cost of law enforcement, for example, is a factor that ought to be
- This is a term that is used to describe a group of contemporary philosophers
that write about important moral and social issues, ranging from abortion to reverse
discrimination, as well as more general questions such as justice. Their writings have
influenced legal scholarship and other disciplines as well. Some of the best known and
influential of these are Ronald Dworkin, Joel Feinberg, James W. Nickel, and John
Rawls.
- See, J. FEINBERG, SOCIAL PHILOSOPHY (1973).
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taken into account. 19 Regardless of how one resolves these controversial
questions, the legislative process and, ultimately, the public, benefits
from a thoughtful consideration of all of the pertinent factors.
In some areas of the law, such as tax, knowledge of another discipline,
economics, is essential to understanding doctrine. Federal income
law, in large measure, is an assortment of economics and accounting
concepts. Beyond that, tax policies are central to financial planning decisions
in every facet of our economy. Those who formulate tax policy
must, therefore, continually examine the economic climate. In a period
such as the late 70’s and early 80’s, when interest rates soared, a tax
system that attached no consequence to bargain interest loans simply
did not contend with reality. Even a concept as fundamental as the
accrual method of accounting, which permits deductions to be taken
when the obligation is fixed and the amount is ascertainable, must be
altered to prevent using money at the government’s expense by causing
the deduction to precede actual payment for a substantial period of
time.20
An additional perspective can be obtained by examining the methodologies
employed in other disciplines. For example, a recent article in
the Journal of Taxation suggests using an econometric model to predict
the appropriate estate plan for a married couple where state and federal
taxes are interdependent and thus have a multiple looping effect
which is caused by their interaction.21
Theoretical understandings also have practical value, even for the
lawyer who engages in more traditional forms of professional activity.
The lawyer’s comprehension of such things as the nature of federalism,
22 the defeasibility of legal concepts, 23 the jurisprudential or politi-
- The absence of a traditional victim requires that elaborate informer systems
be developed to perform some of the enforcement functions of the victim, e.g., reporting
that a crime has been committed and identification. In our constitutional system,
informer systems may be very costly in terms of allocation of resources and other
rights. The cost of enforcement may outweigh the benefits of legislation. See generally,
- PACKER, THE LIMITS OF Tim CRIMINAL SANCTION 151 (1968).
- See 26 U.S.C.A. § 7872 (West Supp. 1985), enacted in 1984, that tax consequences
would result from a bargain interest loan. See 26 U.S.C.A. §461(h) (West
Supp. 1985) for the codification of the economic performance test to the time for deducting
expenses. This provision was added in 1984.
- Moore & Childs, Econometric Model Useful in Calculating State Death
Tax Effect on Marital Deduction, 63 J. TAx’N 252 (1985).
- See, for example, the interesting litigation strategy that resulted in the decision
by Ralph Nader to sue General Motors in a state court in New York when other
state and federal forums were available. S. SPEISER, LAWSUIT 31-42 (1980).
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cal philosophy of a particular court, 4 the difference between policy and
principle arguments,25 and the allocation of decision making between
intra-governmental institutions,26 all provide valuable input for all
phases of litigation decisions. Such understandings are as important to
the competent, caring professional as cross examination skills.
A few elaborated illustrations will suffice to demonstrate this. In a
well-noted case, consumer advocate Ralph Nader, brought suit against
General Motors in a state court in New York for violation of his legal
right to privacy. The state civil suit charged General Motors with (1)
tapping his phones, (2) surveillance of his activities, and (3) subjecting
him to repetitious anonymous phone calls and other activities. The activities
alleged in the complaint occurred in Connecticut, the District of
Columbia, Iowa, Massachusetts, New Hampshire and New York.
Given the contacts with these jurisdictions, Ralph Nader had the option
of initiating the lawsuit in either a federal district court or a state
court in any one of these jurisdictions. Stewart Speiser, Ralph Nader’s
lawyer, has written about the strategy that went into the decision to sue
in a state court in New York, even though New York did not recognize
a legal right to privacy which would prohibit the alleged activities of
General Motors.21 Some of the factors that were considered in the decision
to sue in New York were: (1) the choice of law rule of the various
jurisdictions; (2) the substantive law of privacy of the various jurisdictions;
(3) the tradition of jury awards in federal and state courts within
jurisdictions and between different states; and (4) the availability of
potentially dilatory procedural moves, such as interlocutory appeals in
- “Defeasibility” is a term that H.L.A. Hart used to explain an essential feature
of legal concepts in his inaugural publication, H.L.A. HART, ASSUMPTION OF RESPONSIBILITY
AND RIGHTS, PROCEEDINGS OF THE ARISTOTELIAN SOCIETY, New Series,
XLIX (1949).
- Compare, United States v. New York Telephone Co., 434 U.S. 159 (1977)
with State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982).
- The distinction is one that Ronald Dworkin has developed in his work. See,
- DwORKIN, TAKING RIGHTS SERIOUSLY 22-28 (1977).
- Examples are as numerous as there are hard decisions in appellate court litigation.
Two quickly come to mind: (1) whether to appeal a jury determination in a
personal injury action on the basis that it is excessive and (2) whether to appeal a
school board’s decision after a hearing that there was no abuse of discretion by a principal
who suspended a student.
- S. SPEISER, supra note 22. Two of the counts on invasion of privacy were
sustained by the New York Court of Appeals in a decision that has become important
to the law of privacy generally. See generally Nader v. General Motors Corp., 25
N.Y.2d 560, 255 N.E.2d 765, 307 N.Y.S.2d 647 (1970).
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state and federal courts. A general understanding of our federal system
is essential to the identification and evaluation of these factors.
After Nader defeated attempts by General Motors to dismiss the
privacy suit on pleadings motions in the New York courts, General
Motors settled before trial for $425,000, which at that time, 1960, was
by far the largest monetary recovery ever in this type of action. Mr.
Speiser’s interesting account of the analysis that went into the ultimate
decision of a choice of forum and other aspects of litigation strategy
demonstrates how essential general understandings of our Federal system
are to the everyday decisions of lawyers involved in litigation in
which the parties have contacts with several states.
“Defeasibility” is a term that Professor H.L.A. Hart used in his
inaugural publication to explain an essential feature of some legal concepts.
28 Hart pointed out that legal concepts, such as torts or contracts,
are characterized by one feature: even though certain legal requirements
have been demonstrated, liability may be defeated by demonstrating
that other conditions are present. Thus, even though it has
been established in a contract action that there was offer, acceptance
and consideration, the claim may be defeated if there was fraudulent
misrepresentation; if, in a battery action, the defendant intentionally
struck the plaintiff, the tort action may still be defeated if the defendant
acted in self-defense. In everyday litigation, understanding the defeasibility
of legal concepts is important to the drafting of a complaint
and answer, to choosing correct procedural moves, to structuring discovery,
and to developing a theory of the case.
The distinction between an argument of policy and an argument of
principle is one that Ronald Dworkin has developed in much of his
work.29 Basically, policy arguments are those that identify a goal and
assess the extent to which particular action does or does not promote
that goal. They are arguments determining the extent to which actions
are efficient in accomplishing something in the society. Arguments of
principle are those that support a particular position by invoking a proposition
that is grounded in society’s sense of justice and morality. The
matter is, of course, much more complicated than this brief summary
suggests.
Given the above, there are several practical significances to understanding
the basic distinction. In countering an argument of policy
there are three basic options. One is to question the importance of the
- H.L.A. HART, supra note 23.
- R. DWORKIN, supra note 25.
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social goal that is promoted. More likely, you would question the efficiency
of a particular action as a means for accomplishing the goal.
Finally, you might point to other important goals that would be frustrated
by the particular action in question.
However, when you attack an argument of principle your moves
are different. Arguments of principle have essential roles in litigation
involving fundamental rights. Rights often “trump” government action
that promotes societal goals. For example, if there was a warrantless
search of homes in a residential area for evidence of a crime, it would
promote the general goal of crime control but the action would be unconstitutional
because of failure to conform to the probable cause and
warrant requirements of the Constitution.
Partially as a result of these features of rights arguments founded
on principle, much of the argument strategy in constitutional litigation
evolves around “characterizing” the interest or right involved. This is
because if we can persuade a court that the government action substantially
interferes with “a fundamental right,” then the “trumping” feature
of such rights will almost invariably override the policy asserted to
justify the government action. 30
Perhaps it has too often been said, and it is too obvious, that theoretical
perspectives are important for good lawyering. Yet we suspect
that this basic fact may be too easily forgotten during this skills competency
phase of legal education.
A Case for Teaching Theoretical Perspectives in the Context
of Substantive Courses which Traditionally Emphasize Doctrinal
Coverage: The Pervasive Method
Teachers who believe that theoretical perspectives are important
also find methods of bringing them into their courses. Other teachers
find them less important and do not. The teaching of theory in law
school is likely to be more challenging than ever in the next decade, in
part because students come to law school with a very goal-oriented,
- For examples of the central role that characterization plays in principle
based fundamental rights and principle based equal protection litigation see United
States v. O’Brien, 391 U.S. 367 (1968) and Maher v. Roe, 432 U.S. 464 (1977). Compare
Cohen v. California, 403 U.S. 15 (1971) with Street v. New York, 394 U.S. 576
(1969) and Carey v. Population Services Int’l., 97 S. Ct. 2010 (1977). For equal protection
cases see, Craig v. Boren, 429 U.S. 190 (1976); Loving v. Virginia, 388 U.S. 1
(1967); and compare, Geduldig v. Aiello, 417 U.S. 484 (1974), with Mobile v. Bolden,
446 U.S. 55 (1980).
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practical mindset. They are concerned about jobs in a finite market;
they are often in debt. These and other factors contribute to a lack of
enthusiasm for theoretical or abstract discussions. As law teachers, we
must demonstrate to students that a theoretical understandings is useful
in the day-to- day decisionmaking of lawyers, who represent clients
as well as make policy. An effective way to accomplish this is by teaching
the theoretical perspective as part of a course which primarily focuses
on legal doctrines.
Integration of perspective materials with traditional materials on
common law and constitutional cases, statutes, and regulations enhances
the student’s appreciation for the value of a theoretical perspective.
It also expands the student’s knowledge and understanding of the
cases, statutes, and regulations that are the focus of the discussion. Finally,
it is likely to contribute to that lawyer’s caring and sense of a
broader obligation to the profession and society.
There are a few major casebooks which splice theoretical and primary
material well, but, by and large, the law teacher who is interested
in integrating theoretical materials must develop his or her own supplementary
materials for a particular course. With the technology of word
processing and electronic reproduction, supplementary materials can be
produced quickly and inexpensively. The initial reproduction of excerpts
of theoretical writings, either from books or secondary publications,
and lines of cases, interpreting common law doctrine, the constitution,
or statutes, and regulations, will involve a modest expenditure of
time. Over the course of using the materials in class, specific questions
can be developed which will become the focal point of class discussions
as the materials “mature.”
Courses in the area of public law, with an emphasis on rights
against government, are prime candidates for philosophical and jurisprudential
perspectives, and a great deal of good material is available.31
- There are several sets of published materials that do a good job of interfacing
philosophical and jurisprudence materials with primary authority. See, e.g., FEINBERG
& GROSS, PHILOSOPHY OF LAW (1975); R. KIPNIS, PHILOSOPHICAL ISSUES IN LAW
(1977); MORRIS, FUNDAMENTAL RESPONSIBILITY (1961); Several recent books are also
useful: See also ELY, DEMOCRACY AND DISTRUST (1980); R. BERGER, GOVERNMENT BY
JUDICIARY (1977); M. PERRY, THE CONSTITUTION, THE COURTS AND HUMAN RIGHTS
(1982); D. RICHARDS, MORAL CRITICISM OF LAW (1977).
Professor Turkington has utilized supplementary materials to teach perspective
components in courses on Constitutional Law and Privacy. A partial syllabus follows.
- Separation of Powers
- The Federalist, Madison, #47; Hamilton, #69.
1986] 665
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Courses that have a heavy statutory component and involve important
- Justice Taft, Ex Parte Grossman, 267 U.S. 87, 119, 120 (1925).
- Younger, Congressional Investigations and Executive Secrecy: A Study in
Separation of Powers, 20 U.P.H. L. Rev. 78 (1970).
- Myers v. United States, 272 U.S. 52 (1926). Justice Taft’s “Static Pie” concept
of Separation of Powers, Justice Brandeis “Blending and Diffusion” Concept of
Separation of Powers.
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Professor
Perry on Youngstown.
- Introductory Note: Justice Taft’s and Justice Brandeis’ employment of Marbury
- Madison as precedent in Myers.
- The role of precedent and the principle of stare decisis in Constitutional interpretation.
Edelman v. Jordan, 415 U.S. 651, (1974) (Justice Rhenquist). Runyon v.
McCrary, 427 U.S. 160, 189 (1975) (Justice Stevens). Cardozo, The Nature of the
Judicial Process 149 (1921).
- Introduction to Jurisprudential Foundations of Constitutional Law; Philosophies of
the Role of the Court in Constitutional Adjudication.
- Justice Harlan on Judicial Restraint and Public Action Suits, Flash v. Cohen,
392 U.S. at pp. 130-133 (1968).
- Justice Douglas on Judicial Activism and Public Action Suits, Flash v. Cohen,
392 U.S. at pp. 109-111 (1968).
- Justice Frankfurter on Judicial Restraint, Youngstown v. Sawyer, 343 U.S. at
- 594 (1952).
- Wright, the Role of the Supreme Court in a Democratic Society – Judicial
Activism and Restraint, 54 Corn. L. Rev. 11 (1968).
- Contemporary Talk: Interpretive and Non-Interpretive Review.
- Professor Ely on: ELY, DEMOCRACY AND DISTRUST 1, 2 (1980).
- Professor Perry on: PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN
RIGHTS 10, 11 (1982).
- Griswold v. Connecticut, 381 U.S. 479 (1965).
- The Use of History in Interpreting Constitutional Text: Discovering the Intent of
the Framers.
- Justice Taney on: Dred Scott v. Sanford, 60 U.S. 393, 426 (1857). Justice
Hughes, on Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 442-43 (1934).
- Bickel, the Original Understanding and the Segregation Decision, 69 Harv. L.
Rev. 1 (1955).
- Curtis, A Better Theory of Legal Interpretation, 3 Vand. L. Rev. 407 (1950).
- Wofford, The Blinding Light: the Uses of History in Constitutional Adjudication,
3 U. Chi. L. Rev. 502 (1964).
- Concepts of Fundamental Rights and Justice
- Supreme Court Justices and Moral Philosophers
On Rights
- The Justice, Poe v. Ullman, 367 U.S. 497, 539 (1961). Justice
Harlan Dissenting.
- The Philosopher, Feinberg, Social Philosophy, 31 (1973).
On Justice
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public law issues are ripe for developing supplementary sets of materials
dealing with various perspectives and statutory construction in the
legal process.3 2 There is much that has been written from a very theoretical
perspective about the meaning of language,33 generally, and
there is much that has been written in law reviews on statutory construction
questions. Questions on statutory construction are also tied
closely to questions of a more jurisprudential nature. The attitude that
a court takes in interpreting language in a statute which is open-textured
may well depend upon whether that particular court embraces
any of the dominating schools of jurisprudence, legal realism, positivism,
or natural law. Questions concerning the appropriate role of courts
in a constitutional system and the relationship between the legislature
and courts in respect to policy-making are also relevant considerations
in statutory courses. Materials on history and sociology may work well
in a course such as Contracts. 4
- The Justices
- Strander v. West Virginia, 100 U.S. 303, 308 (1879)
(Justice Strong).
- Plessy v. Ferguson, 163 U.S. 537, 559 (1895) (Justice
Harlan).
- Regents of Univ. of California v. Bokke, 438 U.S.
265 (1978) (Justices Powell and Douglas).
- Fullilove v. Klutznick, 448 U.S. 448 (Chief Justice
Burger).
- The Philosophers
- NICKEL, CLASSIFICATION BY RACE IN COMPENSATORY
ETHICS 84 (1974).
- NEWTON, ETHICS, REVERSE DISCRIMINATION AS UNJUSTIFIED
83 (1973).
- THOMSON, PREFERENTIAL HIRING, PHILOSOPHY AND
PUBLIC AFFAIRS 2 (1973).
- The “unpublished” materials by Hart and Sachs, entitled LEGAL PROCESS,
may still be the best source for perspectives on statutory construction.
- The most recent and, perhaps, most useful example of the spate of literature
that has been published on Interpretation is a two volume symposium in the Southern
California Law Review devoted entirely to the subject. See also Interpretation Symposium,
58 S. CAL. L. REV. 1 (1985).
- The Syllabus in this footnote was prepared by the late Professor Douglas
Salem for an Introductory Course at Southwestern School of Law. Professor Turkington
taught from the materials in 1978 at Southwestern and found them to be an
effective fusing of historical- sociological perspectives with primary authority in the
area of contracts law. Further refinement of the materials was prevented by Professor
Salem’s untimely death in 1979.
- Introduction – Editorial Note Containing
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In short, the varieties of supplementary perspective components
that could be brought to law school courses are only limited by the lack
of interest, imagination or time of the law teacher.
In this era of fiscal belt-tightening, the teaching of theoretical understandings
in the context of the substantive course is not only peda-
- Explanation of function and structure of section.
- Brief excerpts from Holmes, The Common Law and Chief Justice Coke on the
need to understand the historical context in which legal principles evolve in order to use
them.
- Brief excerpts from two classic historical treatises on the forms of action and
pre-18th Century contract law.
- Rehbinder, Status, Contract and the Welfare State, 23 STAN. L. REv. 941
(1971).
- Eighteenth Century Contract Law – Equitable Conception of Contract
- Horowitz, The Historical Foundations of Modern Contract Law, 87 Harv. L.
Rev. 917 (1974) pp. 2212-22.
- Pynchon v. Brewster, Quincy’s Rep. 224 (Mass. 1766).
- Waddill v. Chanberlayne, Barradall’s Rep. 45 (Va. 1735).
- Noble v. Smith, Quincy’s Rep. 254 (Mass. 1767).
- Flureau v. Thornhill, 96 Eng. Rep. 635 (1776).
- Seymour v. Delancy, 6 Johns Ch. 222 (N.Y. Ch. 1822).
III. Nineteenth Century Contract Law – The Will Theory of Contract
- Horowitz, The Emergence of An Instrumental Conception of Law.
- Horowitz, Historical Foundations, supra, pp. 2222-31.
- Restatement of Contracts, (1933), Introduction and section 81.
- Seymour v. Delancy, 3 Cow. 445 (N.Y. 1824).
- Whitefield v. McLeod, 2 Bay 380 (S.C. 1802).
- Seixas v. Wood, 2 Caines (N.Y. 1804).
- Cooke v. Oxley, 100 Eng. Rep. 785 (K.B. 1790).
- Dickenson v. Dodds, 2 Ch. D. 463 (C.A. 1876).
- Shepard v. Hampton, 16 U.S. 200 (1818).
- Twentieth Century Contract Law – Balance of the Equitable and Will Theories
– Return of Status
- Childress & Spitz, Status in the Law of Contract, 47 N.Y.U. L. Rev. 1, 1-7
(1972).
- Drennan v. Star Paving Co., 51 C.2d 409 (1958).
- Goodman v. Dicker, 169 F.2d 684 (D.C. Cir. 1948).
- Hoffman v. Red Owl Stores, 133 N.W.2d 267 (Wis. 1965).
- Restatement of Contracts, 2nd, section 90.
- Uniform Commercial Code, §2-302.
- Campbell Soup Co. v. Wentz, 172 F.2d 80 (3rd Cir. 1948).
- American Home Improvement Co. v. Maclver, 201 A.2d 886 (N.H. 1964).
- Williams v. Walker-Thomas Furniture, 350 F.2d 445 (D.C. Cir. 1965).
- Weaver v. American Oil Co., 276 N.E.2d 144 (Ind. 1971).
- Kessler, Contracts of Adhesion – Some Thoughts About Freedom of Contract,
43 Col. S. Rev. 629, 631-33, 637-38, 640-42.
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gogically sound but is cost efficient in terms of faculty resources. Most
importantly, it will contribute to the development of the caring, competent
law professional which is the primary challenge in legal education
in the next decade.
Nova Law Journal
“Copyright, 1985, G.B. Trudeau. Reprinted with permission of Universal Press Syndicate. All
rights reserved.”
[Vol. 10
Leon Letwin (1929-2015) 